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Susan Vinci-Lucero Wrongful Termination documents

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Lawsuit filed against Good Technology with the SUPERIOR COURT OF THE STATE OF CALIFORNIA
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1 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law SCOTT BONAGOFSKY (SBN: 190255) ELIZABETH R. WEISS (SBN: 209181) BONAGOFSKY & WEISS 111 Deerwood Road, Suite 200 San Ramon, CA 94583 Tel: (415) 882-1555 Fax: (415) 882-1551 Attorneys for Plaintiff SUSAN VINCI-LUCERO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION SUSAN VINCI-LUCERO, Plaintiff, vs. VISTO CORPORATION dba GOOD TECHNOLOGY, a Delaware corporation; JIM MOISE, an individual, and DOES 1 through 100, inclusive, Defendants. Case No.: COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) FAILURE TO ENGAGE IN INTERACTIVE PROCESS (FEHA); (2) FAILURE TO ACCOMMODATE DISABILITY (FEHA); (3) DISABILITY DISCRIMINATION (FEHA); (4) HARASSMENT BASED UPON DISABILITY; (5) RETALIATION (FEHA/CFRA); (6) FAILURE TO PREVENT, INVESTIGATE, AND REMEDY DISCRIMINATION, HARASSMENT, AND RETALIATION; (7) INTERFERENCE WITH RIGHTS UNDER CFRA; (8) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; (9) CONSTRUCTIVE DISCHARGE IN VIOLATION OF PUBLIC POLICY JURY TRIAL DEMANDED Plaintiff SUSAN VINCI-LUCERO (hereinafter Plaintiff) brings this action against Defendant VISTO CORPORATION dba GOOD TECHNOLOGY (referred to herein as GOOD); Defendant JIM MOISE (referred to herein as MOISE), an individual; and Does 1 to 100, inclusive, for damages, injunctive relief, costs, and attorneys fees, resulting from Defendants unlawful and tortious conduct, and therefore alleges: 2 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law INTRODUCTORY STATEMENT OF THE CASE 1. Until she was wrongfully terminated while undergoing chemotherapy treatment for stage 3 breast cancer, Plaintiff SUSAN VINCI-LUCERO was the Senior Vice President of Marketing and highest ranking female employee at Defendant VISTO CORPORATION. VISTO CORPORATION is a 500+-employee secure mobile communications software company based in Sunnyvale. It does business and markets its products under the fictitious business names GOOD TECHNOLOGY and GOOD. 2. Plaintiff was hand-picked for her role as SVP of Marketing by King Lee, Chief Executive Officer of GOOD, who aggressively pursued her for the position. Plaintiff quickly proved to be the right person for the job. She worked tirelessly and delivered outstanding results, leading a marketing department that expanded from 12 to nearly 50 employees within a year and a half, acting as a key driver of GOODs growth story, and receiving glowing praise from her peers, including one email she received the day after her cancer diagnosis (but before she informed the company of her diagnosis), in which David Satterwhite, GOODs Vice President and General Manager, Americas, told Plaintiff, Your team is doing an amazing job Susan. Thanks. Plaintiff was well liked by her peers and respected by her team members. 3. At the end of 2011, after her first full year on the job, GOOD recognized Plaintiff for her performance with a bonus equal to 50% of her salary, the highest bonus possible under her employment contract. No one ever complained to her about her performance not in writing, not in email, not verbally, or otherwise. 4. GOODs positive attitude toward Plaintiff changed when she returned from surgery following her breast cancer. Three days after coming back from her surgery, Plaintiffs supervisor, Defendant MOISE, informed her that there was confusion among her team as to whom people should be reporting, and that her comings and goings for her medical appointments were disruptive, confusing to her team, and bad for business. 5. MOISE instructed Plaintiff that she was to remain at home and not to work until she was finished with her chemotherapy and radiation treatments, all of which would take approximately five months. Plaintiff memorialized MOISEs conduct and statements in an email 3 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law to Debbie Shotwell, GOODs Vice President of Global Human Resources, and to MOISE, on May 22, 2012, and objected to this unlawful conduct. The next day, CEO King Lee telephoned Plaintiff while she was in the middle of a chemotherapy appointment and angrily berated her on the telephone, stating that he wanted to talk to her. 6. The next day, Plaintiff telephoned Ms. Shotwell about the angry telephone call she had received from CEO Lee. Ms. Shotwell reacted immediately, telling Plaintiff emphatically not to talk to CEO Lee, that there was no reason to respond to him, they had told her not to work, and that it was settled. 7. On or about July 11, 2012, while she was still undergoing chemotherapy, GOOD tried surreptitiously to trick Plaintiff into waiving her right to jury trial by slipping an arbitration clause into a new employee handbook, which it emailed to Plaintiff. Plaintiff did not agree to the arbitration clause. 8. On July 18, 2012, a week after GOOD tried to sneak the arbitration agreement into its new employee handbook, Ms. Shotwell asked Plaintiff via her executive assistant to meet her for lunch on July 26, 2012. At the last minute, Plaintiff learned that CEO Lee would be attending the lunch. 9. At the July 26, 2012 lunch, Lee asked Ms. Shotwell to leave him and Plaintiff alone. When they were alone, Lee informed Plaintiff that it was time for you to go, that she needed to leave the company, and that the company had prepared a severance package for her. Plaintiff requested the severance offer in writing. 10. On July 26, 2012, Debbie Shotwell emailed Plaintiff the rough terms of a severance package. She asked Plaintiff to give GOOD her response within the next 1-2 weeks so that there is closure. No mention was made of any alternatives to Plaintiff having been terminated. A true and correct copy of this email is attached hereto as Exhibit A. 11. On July 31, 2012, Plaintiff responded that she needed additional time to consider her options and requested her personnel file and other employment-related documents. This request apparently prompted GOOD to put things in the hands of its lawyers, who apparently realized how blatantly GOOD had violated the law, because two days later, on August 2, 2012, 4 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law Ms. Shotwell sent yet another email. This email from Ms. Shotwell contained a fabricated story about MOISE and Shotwell having communicated to Plaintiff that they had concerns with her performance, a highly technical discussion of Plaintiffs purported rights and responsibilities, and a false statement that Plaintiff had not been terminated, but that a voluntary separation was merely one of three options on the table. A true and correct copy of this email is attached hereto as Exhibit B. 12. GOOD fired Plaintiff because she was diagnosed with cancer, took time off work for surgery and chemotherapy, and because she objected to the unlawful manner in which GOOD refused to allow her to return to work (as her physicians recommended she do), because she put her concerns in writing. GOOD has no plausible explanation for why it would have fired an executive who, just prior to being diagnosed with cancer, had a stellar year and had been rewarded with a maximum bonus. PARTIES 13. Plaintiff is an adult individual residing in Santa Fe, New Mexico. 14. Defendant GOOD is, and was at all times relevant herein, a Delaware corporation, with its principal place of business in Sunnyvale, California, in the County of Santa Clara. At all times relevant to this action, GOOD employed more than five employees in California and had more than 50 employees within 75 miles of Plaintiffs worksite. 15. Plaintiff is informed and believes and thereupon alleges that Defendant JIM MOISE is, and was at all times relevant herein was, an adult individual who resides in southern California. At the time of Plaintiffs termination, MOISE was GOODs Chief Customer Officer and Executive Vice President Sales, Marketing, and Services, and was Plaintiffs direct supervisor. 16. Plaintiff is ignorant of the true names and/or capacities of the defendants sued herein as Does 1 through 100, inclusive, and therefore sues these defendants by such fictitious names pursuant to Code of Civil Procedure Section 474. Plaintiff will amend this Complaint to allege their true names and capacities when ascertained. Each fictitiously-named defendant is responsible in some manner for the occurrences alleged herein, and Plaintiff is entitled to the 5 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law relief requested herein against each such fictitiously-named defendant. 17. Plaintiff is informed and believes and thereupon alleges that, at all times material herein, each of the specifically named and DOE defendants was the agent of, employee of, and/or working in concert with, his or her co-defendants and was acting within the course and scope of such agency, employment and/or concerted activity. To the extent that certain acts and omissions were perpetrated by certain defendants, the remaining defendant or defendants authorized, confirmed and/or ratified said acts and omissions. 18. Whenever and wherever reference is made in this complaint to any act by, or failure to act of, a defendant or defendants, such allegations and reference shall also be deemed to mean the acts and failures to act of each defendant acting individually, jointly, and severally. 19. Whenever and wherever reference is made to individuals who are not named as plaintiff or defendants in this complaint but were employees and/or agents of Defendant GOOD, such individuals at all relevant times acted on behalf of Defendant GOOD within the course and scope of their employment and/or agency. GENERAL ALLEGATIONS 20. On August 5, 2010, Plaintiff began working for GOOD as interim Senior Vice President of Marketing, on a consultant basis. Plaintiffs role was to assess GOODs marketing department and determine whether she would be interested in assuming the permanent role of Senior Vice President of Marketing at GOOD. She had been aggressively pursued to accept the position by CEO King Lee, whom she had known for years and who was familiar with her earlier work in heading up the creation of Compaq Computer Corp.s successful Presario brand of personal computers. 21. On October 5, 2010, Plaintiff accepted GOODs offer of permanent employment as Senior Vice President of Marketing. She initially reported to CEO Lee, who had worked with her before in several different capacities and knew her skill set well. In December 2011 GOOD hired Defendant JIM MOISE as Chief Customer Officer and Executive Vice President Sales, Marketing, and Services. MOISE became Plaintiffs supervisor at this time; MOISE himself reported directly to CEO Lee. 6 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law 22. Plaintiff worked hard and performed her job at GOOD very well. 23. Through the end of 2011, Plaintiff had overseen explosive growth in GOODs marketing department from 12 to nearly 50 employees, had achieved 100% of her Measurable Business Objectives (MBOs), had led the company in its strategic shift toward a focus on enterprise customers, spearheaded a project to align the marketing and sales departments, which were badly misaligned because of a lack of top-end leadership by CEO King Lee, and had received multiple emails from her peers attesting to her brilliance and the wonderful job she and her amazing team were doing. 24. At the end of 2011, following her first full year at GOOD, she was rewarded with a bonus of 50% of her base salary, which was the maximum bonus available to her under her employment agreement. 25. On March 2, 2012, Plaintiffs physician diagnosed Plaintiff with stage 3 breast cancer. Despite having her world turned upside down, Plaintiffs first instinct was not to leave her work colleagues or the company in a lurch. She worked tirelessly during the weeks leading up to her double mastectomy to prepare a departmental coverage plan, which received approval from GOODs management and was to stay in place until she returned from surgery and initial chemotherapy treatments in approximately May 2012. 26. On March 3, 2012, the day after her diagnosis, but before she had communicated her diagnosis to GOOD, Plaintiff received an email from David Satterwhite, Vice President and General Manager, Americas, at GOOD, informing her that her team was doing an amazing job. Attached hereto as Exhibit C is a true and correct copy of this email, redacted to remove potentially confidential company information. 27. Up to the point when she informed GOOD of her diagnosis, Plaintiff had received no negative feedback from GOOD regarding her performance. 28. Plaintiffs medical condition constitutes a disability as defined by the California Fair Employment and Housing Act. Plaintiffs disability limits major life activities, such as working. 29. Plaintiff was able to perform the essential functions of her job with reasonable 7 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law accommodation. 30. Plaintiff promptly informed GOOD of her diagnosis and that she would be scheduling surgery for late March, with chemotherapy and radiation to follow her surgical recovery. 31. Plaintiff was told by CEO Lee that the company would support her as she came back to work following her surgery. 32. Plaintiffs last day at work prior to the surgery was March 23, 2012. GOOD did not provide Plaintiff with written notice of her rights or obligations under the California Family Rights Act (CFRA) or the Family and Medical Leave Act (FMLA) when she went out on leave at this time, or at any time thereafter prior to her termination. Furthermore, GOOD did not designate Plaintiff as a key employee under the CFRA or FMLA prior to terminating her employment. 33. Plaintiff underwent surgery on March 27, 2012. 34. During her recovery from the surgery, Plaintiff worked intermittently, communicating with her supervisor and her team via email, text, and telephone, and by attending meetings. Plaintiff remained in regular contact with GOOD the entire time she was out recovering from her surgery. 35. In mid- and late-April 2012, Plaintiff informed GOOD that she would be ready to return to work in approximately the week of May 14, 2012. 36. Plaintiff began chemotherapy on May 10, 2012. 37. Plaintiff returned to work on May 15, 2012. Plaintiffs physician advised her that it would be beneficial to her recovery for her to return to work while undergoing chemotherapy. 38. When she returned to work, Plaintiff scheduled her chemotherapy and other doctors appointments to minimize the impact it would have on her working schedule. 39. After allowing Plaintiff to take a paid leave for surgery and recovery, GOOD made no further attempts to engage in an interactive process with Plaintiff to determine whether, once she returned to work, she would be able to perform the essential functions of her position with or without a reasonable accommodation. 8 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law 40. On May 17, 2012, at approximately 3:45 p.m., Plaintiff met with MOISE to catch up on a number of items that were outstanding. After discussing work related items, MOISE changed the subject to Plaintiffs cancer. MOISE told Plaintiff that chemotherapy and radiation were going to be a long haul and that she should focus on her health instead of working. MOISE said that Plaintiffs return to work was not working, that it was too confusing to the team, that people on the team and her peers did not know whom to go to, and the whole thing of her coming and going for medical treatments was bad for business and disruptive to the team. MOISE made these statements multiple times during the meeting, which was extremely upsetting to Plaintiff. MOISE told Plaintiff that the company would pay her while she was out, but instructed Plaintiff that she was not to come to work and not to work from home. Plaintiff stated that she was ready and able to work, but it made no difference. 41. On May 22, 2012, Plaintiff sent an email to MOISE and Debbie Shotwell confirming what MOISE had said on May 17, 2012. In this email, Plaintiff objected to MOISEs statements about her being bad for business. On May 25, 2012, MOISE confirmed the accuracy of the contents of Plaintiffs May 22, 2012 email. True and correct copies of these emails are attached hereto as Exhibit D. In another email on May 22, 2012, Plaintiff objected to Debbie Shotwell about MOISEs conduct at the May 17, 2012 meeting. A true and correct copy of this email is attached hereto as Exhibit E. 42. On May 23, 2012, Plaintiff went to a chemotherapy appointment. While she was in the middle of the appointment, King Lee called her and berated her on the telephone, stating that they need to talk. Plaintiff informed Lee that she was in the middle of her medical appointment and that she would have to get back to him the following week after she recovered from her chemotherapy. 43. On May 24, 2012, Plaintiff informed Ms. Shotwell about the angry telephone call from Lee and the circumstances surrounding the call. Ms. Shotwell seemed nervous and concerned about how Lee had acted and told Plaintiff not to talk to Lee because it had been settled already. 44. On June 6, 2012, Lee called Plaintiff from his car and stated that he had been 9 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law reluctant to call her after the last call because she had been kind of groggy. Plaintiff informed him that she had been in the middle of the chemotherapy appointment but that she remembered that phone call just fine. Lee made small talk about his vacation plans and asked about Plaintiffs medical treatment, but said nothing about any dissatisfaction with her job performance or anything else. 45. On June 18, 2012, Plaintiff met with one of GOODs directors, Bandel Carano, regarding a brand campaign. Mr. Carano appeared to like Plaintiffs presentation and was pleased by the meeting. Again, nothing negative was stated about Plaintiffs job performance before, during, or after this meeting. 46. On June 28, 2012, Plaintiff met with a candidate as requested for the interim job of filling in for Plaintiff. 47. On or about July 11, 2012, GOOD sent Plaintiff an email containing a revised Employee Handbook containing a purported arbitration clause. Plaintiff did not agree to this purported arbitration clause, and therefore, never entered into any kind of arbitration agreement with GOOD. 48. On July 18, 2012, the week after GOOD attempted to impose a mandatory arbitration agreement on Plaintiff, Plaintiffs assistant emailed her and said that Debbie Shotwell wanted to meet with Plaintiff. Plaintiff asked whether it was a meeting or a visit and what it was regarding. Plaintiffs assistant did not know. The meeting was eventually scheduled for lunch time on July 26, 2012. 49. On the morning of July 26, 2012, Plaintiff received a call from her assistant, who informed Plaintiff that King Lee would also be joining Plaintiff and Ms. Shotwell for the lunch. 50. Plaintiff arrived for the lunch meeting at 12:30 p.m. Lee was not present yet. Plaintiff asked Ms. Shotwell whether Lee was going to be present. Plaintiff and Ms. Shotwell made small talk about the company while they waited for Lee. 51. Lee arrived as Plaintiff and Ms. Shotwell finished their food. Lee asked Ms. Shotwell to leave him alone with Plaintiff. 52. When they were alone, Lee made small talk about the company and then 10 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law eventually got to the point of the meeting. Lee told Plaintiff, Well, look its time for you to go; you need to leave the company. Plaintiff was shocked and stunned. Lee continued that it was time to move on, that MOISE had made the decision and Lee agreed. Lee stated that the company was going to offer her a year of severance pay and continue her COBRA coverage. Plaintiff asked whether she was going to see the severance offer in writing and Lee said, Yes. Plaintiff then told him that she needed to think about the offer, at which point Lee jumped up, grabbed the check and left. 53. Shotwell returned and apparently knew that Plaintiff had been fired, but asked her nervously about what Lee had said. Plaintiff relayed the conversation to her as they walked back to Plaintiffs condominium from the restaurant. Shotwell agreed with Plaintiff that what the company was doing was awful, and stated that it was horrible and really terrible timing. Ms. Shotwell began to cry and gave Plaintiff a hug as they parted. 54. In the evening of July 26, 2012, Ms. Shotwell sent Plaintiff an email containing the summary of the companys severance package offer to Plaintiff. Nowhere in this email does it state anything about Plaintiff remaining with the company in any other capacity. What Ms. Shotwells email does say is that GOOD hoped that they could have Plaintiffs response soon to achieve closure within 1-2 weeks. (See Exhibit A hereto.) Plaintiff responded to this email the next morning, stating that she had experienced a horrible night and the stress, especially at this point, is nearly overwhelming. Ms. Shotwell then responded I understand. Let me know if you need anything. Ms. Shotwell said nothing about any alternatives to Plaintiff having been fired the day before. A true and correct copy of this email is attached hereto as Exhibit F. 55. On July 31, 2012, Ms. Shotwell emailed Plaintiff asking her to get in contact with her regarding how she would like to proceed regarding her communication from the prior week. Plaintiff responded to Ms. Shotwell and informed her that she needed time to think about the severance offer and consider her options. Plaintiff requested her personnel file and other documents that she had signed, including the stock option agreement governing her stock options. Plaintiff also said that the companys decision to terminate her employment while she is in the middle of her cancer treatment has been very unsettling to her, and that she would need 11 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law a little more time to think about GOODs severance offer, and to consider her options before giving a response. Ms. Shotwells email response of less than two hours later does not dispute Plaintiffs statement immediately below that she had been terminated in the middle of her cancer treatment. A true and correct copy of this email is attached hereto as Exhibit G. 56. On August 2, 2012, Ms. Shotwell responded with a new letter, this time pretending that Plaintiff had not been fired, and falsely claiming that MOISE and Shotwell had concerns about your role prior to your diagnosis. In this letter, Ms. Shotwell also claimed that Plaintiff now had three options: voluntary separation, FMLA leave, or a reduced role. (See Exhibit B hereto.) Plaintiff rejected GOODs attempt to rehire her so that it could have a do over on the FMLA issues, classify her as a key employee, and refuse to reinstate her. 57. On October 26, 2012, Plaintiff filed a Complaint of Discrimination with the Department of Fair Employment and Housing, naming GOOD and MOISE as respondents. On October 26, 2012, Plaintiff received a copy of her Right-To-Sue Notice from the Department of Fair Employment and Housing. Plaintiff has thereby exhausted her administrative remedies against Defendant GOOD prior to filing the instant suit. True and correct copies of the Charges of Discrimination and Right-to-Sue Notices are attached hereto as Exhibit H and incorporated by reference herein. FIRST CAUSE OF ACTION (Failure to Engage in Interactive Process Cal. Gov. Code 12940(n)) [Plaintiff Against Defendants GOOD and Does 1-100] 58. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 57, inclusive, as though fully set forth herein. 59. In violation of California Government Code sections 12926(n), 12926.1(e), and 12940(n), GOOD failed and refused to engage in a timely, good-faith interactive process with Plaintiff once it learned of Plaintiffs breast cancer and need for surgery, chemotherapy, and radiation treatments on or about March 5, 2012, and failed and refused to engage in a timely, good-faith interactive process with Plaintiff when she returned to work at GOOD on May 15, 2012. 60. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has 12 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court. Plaintiff is also entitled to attorneys fees and costs pursuant to statute. 61. The conduct of GOODs officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. SECOND CAUSE OF ACTION (Failure to Accommodate Disability Cal. Gov. Code 12940(m)) [Plaintiff Against Defendants GOOD and Does 1-100] 62. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 61, inclusive, as though fully set forth herein. 63. In violation of California Government Code sections 12926(n), 12926.1(e), and 12940(m), GOOD failed to take reasonable steps to accommodate Plaintiffs disability. 64. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court. Plaintiff is also entitled to attorneys fees and costs pursuant to statute. 65. The conduct of GOODs officers, directors, and managing agents in terminating 13 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. THIRD CAUSE OF ACTION (Disability Discrimination Cal. Gov. Code 12940(a)) [Plaintiff against Defendants GOOD and Does 1-100] 66. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 65, inclusive, as though fully set forth herein. 67. Plaintiff was employed by GOOD, which is an employer under the California Fair Employment and Housing Act, Cal. Gov. Code section 12926, et seq. 68. Before terminating her employment, GOOD knew that Plaintiff had a disability that limited her ability to work. 69. Plaintiff was able to perform the essential job duties of her position with reasonable accommodation of her disability. 70. As alleged above, Defendant GOOD unlawfully discriminated against Plaintiff based on her disability and/or perceived disability. Defendant GOOD did so by, among other things, refusing her to return to work following her surgery and by terminating Plaintiffs employment. Plaintiffs disability was a motivating reason for GOODs termination of Plaintiffs employment. 71. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court, and to attorneys fees and costs pursuant to statute. 72. The conduct of GOODs officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious 14 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. FOURTH CAUSE OF ACTION (Disability Harassment Cal. Gov. Code 12940(g)) [Plaintiff against Defendants GOOD, MOISE, and Does 1-100] 73. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 72, inclusive, as though fully set forth herein. 74. Plaintiff was employed by GOOD, which is an employer under the California Fair Employment and Housing Act, Cal. Gov. Code section 12926, et seq. 75. Before terminating her employment, GOOD knew that Plaintiff had a disability that limited one or more major life activities. 76. Plaintiff was subjected to unwanted harassing conduct because of her disability. Defendant MOISE engaged in the aforementioned harassing conduct by telling Plaintiff to go home and not come back to the office until her chemotherapy and radiation treatments were finished because her need for these treatments and her comings and goings for treatment were supposedly disruptive, confusing for the team, and bad for business. MOISE made these statements several times during his May 17, 2012 meeting, and caused Plaintiff severe emotional distress in so doing. 77. The harassing conduct was severe or pervasive. 78. A reasonable person in Plaintiffs circumstances would have considered the work environment to be hostile or abusive. 79. Plaintiff subjectively considered the work environment hostile or abusive. 80. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the 15 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law jurisdictional minimum of this Court, and to attorneys fees and costs pursuant to statute. 81. The conduct of GOODs officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. FIFTH CAUSE OF ACTION (Retaliation Cal. Gov. Code 12940(h), 12945.2(t)) [Plaintiff Against Defendant GOOD and Does 1-100] 82. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 81, inclusive, as though fully set forth herein. 83. Plaintiff was eligible for medical leave pursuant to the California Family Rights Act, California Government Code section 12945.1, et seq. (CFRA). 84. From March 26, 2012, through May 14, 2012, Plaintiff took a medical leave that was CFRA-eligible for her own serious health condition that made her unable to perform the functions of her position with GOOD for the time she was on medical leave. This medical leave also constituted a reasonable accommodation of Plaintiffs disability. 85. Plaintiff further objected verbally and in writing when MOISE accused her of being disruptive and bad for business at the May 17, 2012 meeting, and in so doing, engaged in protected conduct under the FEHA and CFRA. 86. GOOD unlawfully used Plaintiffs medical leave and her opposition to MOISEs harassing comments as negative factors in evaluating her job performance and in selecting her for termination. 87. The conduct of Defendants, and each of them, was a substantial factor in causing the harm suffered by Plaintiff. 88. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress. Plaintiff has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and other harm. Plaintiff is thereby entitled to compensatory damages in an amount to be proven 16 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law at trial and in excess of the jurisdictional minimum of the Court, and to attorneys fees and costs, including expert witness fees, pursuant to statute. GOODs managing agents engaged in the aforementioned discrimination and retaliation intentionally, oppressively, and in conscious disregard of Plaintiffs rights, and/or by authorizing and ratifying the discriminatory conduct of others that was directed at Plaintiff. Plaintiff is, therefore, also entitled to exemplary damages in an amount sufficient to make an example of and punish each Defendant. Plaintiff is further entitled to injunctive relief, requiring the Defendants, and each of them, to remedy their discriminatory practices. SIXTH CAUSE OF ACTION (Failure to Prevent, Investigate, and Remedy Discrimination, Harassment, and Retaliation) [Plaintiff Against Defendants GOOD and Does 1-100] 89. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 88, inclusive, as though fully set forth herein. 90. In violation of California Government Code section 12940(k), GOOD failed to take reasonable steps to prevent or remedy discrimination against Plaintiff based on her disability. GOOD failed to investigate reports of harassment, discrimination, and denial of reasonable accommodations despite having knowledge of the same. 91. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court. Plaintiff is also entitled to attorneys fees and costs pursuant to statute. 92. The conduct of GOODs officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary 17 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law damages against GOOD in an amount sufficient to make an example of and to punish GOOD. SEVENTH CAUSE OF ACTION (Interference with Rights Under CFRA Cal. Gov. Code 12945.2(t)) [Plaintiff against Defendants GOOD and Does 1-100] 93. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 92, inclusive, as though fully set forth herein. 94. As alleged above, Plaintiff went out on paid leave for her breast cancer surgery and during her recovery from the surgery. Furthermore, when Plaintiff returned to work following surgery, she required intermittent leave to attend doctors appointments and undergo chemotherapy. 95. The California Family Rights Act (CFRA) requires an employer to grant up to twelve workweeks of family and medical leave to an employee who suffers from a serious medical condition. One such qualifying medical condition is cancer. The CFRA requires that the employer reinstate the employee to the same or comparable job upon completion of such leave, and to grant intermittent leave as needed for medical appointments. 96. At the time she began her leave, Plaintiff had more than 12 months of service with GOOD and had worked more than 1,250 hours in those preceding 12 months. 97. When Plaintiffs physician informed her that she could return to work, Plaintiff communicated to GOOD that she was ready, willing, and able to return to work. GOOD initially allowed her to return to work, but after only three days, sent Plaintiff home until she was finished with her treatment, claiming that her comings and goings for medical appointments was disruptive, confusing, and bad for business. In so doing, GOOD denied Plaintiff the right to take CFRA-eligible leave for her medical appointments, and to return to work following a CFRA-eligible leave. 98. Under the circumstances, per section 7297.4 of Title 2 of the California Code of Regulations, GOOD was on notice of Plaintiffs entitlement to and need for CFRA-qualifying leave, and had a duty to provide Plaintiff with notice that her continued leave was CFRA-qualifying leave and to guarantee that Plaintiff would be able to return to work at the conclusion of the CFRA leave period. 18 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law 99. GOOD failed to satisfy its duties under the CFRA and its applicable regulations to provide Plaintiff with the required notices under the CFRA regarding designation of a leave as CFRA-qualifying, to provide a guarantee of reinstatement, to permit Plaintiff to return to work following her CFRA-eligible leave, and to permit her to take intermittent leave for medical appointments following her return to work. 100. As a direct and proximate result of GOODs unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress; Plaintiff has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses; and Plaintiff has suffered wage loss and other harm. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court, and to attorneys fees and costs pursuant to statute. Because Defendant GOODs managing agents acted intentionally, oppressively, and in conscious disregard of Plaintiffs rights, Plaintiff is also entitled to punitive damages in an amount sufficient to make an example of and punish GOOD. Plaintiff is further entitled to injunctive relief requiring GOOD to remedy its discriminatory practices by reinstating Plaintiffs employment and by enjoining GOOD from engaging in similar unlawful conduct in the future. EIGHTH CAUSE OF ACTION (Wrongful Termination in Violation of Public Policy) [Plaintiff against Defendant GOOD and Does 1-100] 101. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 100, inclusive, as though fully set forth herein. 102. At all times relevant hereto, until July 26, 2012, Plaintiff was an employee of GOOD. On July 26, 2012, GOOD terminated Plaintiffs employment as alleged above. GOODs termination of Plaintiffs employment was motivated by Plaintiffs disability and need for CFRA-qualifying leave, and was therefore in violation of fundamental and substantial public policies of the State of California and the United States of America, including but not limited to the Fair Employment and Housing Act, California Government Code section 12900, et seq.; the CFRA, California Government Code section 12945.2; the Americans with Disabilities Act of 19 COMPLAINT 12345678910111213141516171819202122232425262728Bonagofsky & Weiss Attorneys at Law 1990, 42 U.S.C. 12101, et seq., and the Family and Medical Leave Act of 1993, 29 U.S.C. 2601, et seq., and related state and federal regulations. 103. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has suffered and will continue to suffer extreme and severe mental anguish and emotional distress and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, and loss of self-worth, and has incurred and will continue to incur medical expenses for treatment by health care professionals, and for other incidental medical expenses. Plaintiff has also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial and in excess of the jurisdictional minimum of this Court. 104. The conduct of GOODs officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. NINTH CAUSE OF ACTION (Constructive Discharge in Violation of Public Policy) [Plaintiff against Defendant GOOD and Does 1-100] 105. Plaintiff restates and incorporates by reference each and every allegation contained in paragraphs 1 through 104, inclusive, as though fully set forth herein. 106. At all times relevant hereto, until July 26, 2012, Plaintiff was an employee of GOOD. On July 26, 2012, GOOD constructively discharged Plaintiff. GOODs constructive discharge of Plaintiff was motivated by Plaintiffs disability and need for CFRA-qualifying leave, and was therefore in violation of fundamental and substantial public policies of the State of California and the United States of America, including but not limited to the Fair Employment and Housing Act, California Government Code section 12900, et seq.; the CFRA, California Government Code section 12945.2; the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq., and the Family and Medical Leave Act of 1993, 29 U.S.C. 2601, et seq., and related state and federal regulations. 107. As a direct and proximate result of Defendants unlawful conduct, Plaintiff has (/) !!!3: 3j KSt 11)>-ILw 00:{ [) suffered and will continue to suffer extreme and severe mental anguish and emotional distress 2 and other non-economic damages including but not limited to shock, anxiety, loss of self-esteem, 3 and loss of self-worth, and has incurred and will continue to incur medical expenses for 4 treatment by health care professionals, and for other incidental medical expenses. Plaintiff has 5 also suffered wage loss and loss of benefits, past and future. Plaintiff is thereby entitled to 6 general and compensatory damages in amounts to be proven at trial and in excess of the 7 jurisdictional minimum of this Court. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 108. The conduct of GOOD's officers, directors, and managing agents in terminating Plaintiffs employment was done intentionally, and with full knowledge of and in conscious disregard for the harm it would cause to Plaintiff. Plaintiff seeks an award of exemplary damages against GOOD in an amount sufficient to make an example of and to punish GOOD. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests the following judgment and relief from Defendants: 1. Compensatory damages, including general damages, special damages, economic damages, and non-economic damages in an amount according to proof at trial; 2. Exemplary damages in an amount according to proof, to punish and make an example of defendants; 3. Statutory attorneys' fees and costs, including costs of expert witnesses; 4. Prejudgment and post-judgment interest according to any applicable provision oflaw, according to proof; 5. Costs of suit; and 6. Such other and further relief as the court deems just and proper. Dated: October 29,2012 BONAGOFSKY & WEISS By: __ ______________ __ Scott Bonagofsky Attorneys for Plaintiff SUSAN VINCI-LUCERO 20 COMPLAINT 2 3 4 5 6 7 8 9 10 11 12 U) 13 !!l:s; 161;;( 14 >-Cf) cnw 15 il.z 0[( "0 H: 16 [} 17 18 19 20 21 22 23 24 25 26 27 28 JURY DEMAND Plaintiff SUSAN VINCI-LUCERO demands trial by jury for all issues so triable in this action. Dated: October 29,2012 BONAGOFSKY & WEISS Scott Bonagofsky Attorneys for Plaintiff SUSAN VINCI-LUCERO 21 COMPLAINT EXHIBIT A Thursday, July 26, 201210:30:06 PM Pacific Daylight Time Subject: Susan Vinci Lucero -- Attorney-Client Privileged & Confidential Date: Thursday, July 26,20129:57:22 PM Pacific Daylight Time From: Debbie Shotwell To: Susan Vinci-Lucero Dear Susan, Thank you for taking the time to meet with us today. We want to be highly respectful of your circumstances and address a very challenging situation in a way that both honors our relationship with you and serves the needs of the company in the short term and long term. As discussed, as an executive severance package upon termination, Good is currently prepared to offer you the following: 1. 12 months base pay 2. 12 months additional stock option vesting 3. 12 months post-separation to exercise your vested stock options 4. . COBRA covemge for the legal maximum of 29 months 5. Gdod will continue to pay for your condo until your medical treatment is complete If this is acceptable to you. we'll fonnalizeitinto a separation agreement that spells out the terms and of claims. of the sensitivity and personal nature of this situation, at this time we are not diSclosing anything to employees genemlly within the marketing department or elsewhere intbe i;x)mpany .. We wotild greatly prefer to reach an agreement that you are comfortable with you in the next 1-2 weeks so that there is closure. I am happy to answer any questions you have, and work with you as andwhenconvement. When you are ready, I will personally take care of all the necessary paperwork and reducing any burden on you. Respectfully, Debbie Shotwell Attachment: Stock Option Worksheet This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review. copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and pennanently delete the original and any copies of this email and any attachments thereto. Pagel of EXHIBITB From: Debbie Shotwell Sent: Thursday, August 02,2012 12:41 PM To: Susan Vinci-Lucero Subject: Request for documents response Importance: High PERSONALICOMP ANY CONFIDENTIAL OFFER August 2,2012 Via Electronic Mail and Federal Express Ms. Susan Vinci-Lucero 1901 Cerros Colorados Santa Fe, NM 87501 Re: Leave of Absence Dear Susan: We received your e-mail of yesterday evening, and we are gathering all of the personnel and insurance information you've requested. To be clear, you have not been terminated from the Company. Our conversations were intended to communicate the decision to move in anotherdirection for leadership of the company's marketing department made prior to your diagnosis as well as the challenges ofthe current situation and your rights and responsibilities related to continued employment. However, given our desire to continue to be as generous as possible with you and, we wanted to offer you the opportunity of structuring a voluntary executive separation package. Indeed, no changes have been made to pay or benefits and your access to the Company's computer systems, your electronic mail, etc. and no change of status has been communicated to the organization. So that you may fully consider the alternatives, it is important that we deliver the information and documentation to you that we initially discussed so that there is no misunderstanding regarding your options and the Company's intentions. To be clear, we are very grateful for your service. We also know that you continue to face some personal medical challenges, and we do want to make sure that you receive all of the benefits that you are entitled to and more, if we can. However, we also need to be clear about your rights and responsibilities as well as the Company's rights and responsibilities. We hope this clarity will help you focus on your recovery and your eventual return to work. I. Circumstances To Date In order to clarify the current alternatives, it is helpful to review how we got here. When you notified us that you had been diagnosed with breast cancer and would need to take some time offfor surgical treatment as well as post-operative treatments, we immediately granted your request. Although you were aware that you were entitled to take an unpaid FMLA/CFRA leave of absence, you voluntarily requested and elected to take a paid medical leave of absence for the surgical treatment and continue to work on an as-needed basis while receiving post-operative treatments. Based on your request, the Company allowed you to set your own schedule and has continued to pay you your full salary of$9,375.00 (semi-monthly) during your absence(s) through the date of this letter. In addition, you recommended a plan to provide coverage of the essential duties of the marketing department. This included the services of Christine Crandell along with Kirsten Berg-Painter, consultants hired by the company for these services. As you are aware, for a considerable period during 201 O-into early 2012, the Company faced significant challenges relating to the interaction ofthe Sales and Marketing groups. Accordingly, prior to your recent illness, the Company appointed Jim Moise to the position of Chief Revenue Officer. You were asked to begin reporting to Jim Moise rather than King Lee, the Company's Chief Executive Officer, and you have done so since Jimjoined the Company. During the first 2.5 months of Jim's tenure with the company, Jim had the opportunity to assess the interaction between the sales and marketing groups, as well as the effectiveness of your leadership ofthe marketing team. As you are aware, both Jim and I had concerns about your role prior to your diagnosis. In any event, as Jim discussed with you, and as King and I reiterated, while the Company remains committed to working with you in an interactive process, the functions of your position are critical to the Company, and it is essential that the Company have consistent coverage of those functions. We first had to retain a part-time short term project-based consultant (and more recently a full-time short term project-based consultant) to cover your responsibilities and have been holding your position open. However, the continued concerns of management as well as the current situation where duties are split between you and temporary personnel has become untenable and is causing significant financial impact to the Company and the viability of its products. While we understand that you have been ill, unfortunately you have not been able to cover the essential functions of your position. Likewise, although we understand that your treatments interfere with your ability to consistently come to the office; your position requires regular, reliable and predictable attendance. Accordingly, the Company can no longer continue to accommodate an intermittent leave! "work as able" schedule because it creates an undue hardship on the Company. Thus, as we informed you, if you were not interested in a voluntary separation, we would need to request that you remain out on FMLA leave on a full time basis as set forth below. II. Alternatives Moving Forward Prior to discussing a potential voluntary separation with you, we evaluated the various options available to you and the Company and believed that a voluntary separation was most advantageous to you. Because you are not able to perform the essential functions of your duties on a full time basis, the Company has provisionally approved that you begin a full time FMLA!CFRA leave of absence. Additionally, we think it is important to clarify and present to you the three alternatives we've considered for how we could move forward. The first alternative is a voluntary separation. The second alternative at this time is for you to begin a full time FMLA/CFRA leave of absence in your current position as Senior Vice President of Marketing and Product Management, subject to your understanding of the information set forth below regarding your Key Employee status. The third alternative is for you to begin a full time FMLA/CFRA leave of absence and presently accept an alternative non-executive position. In this new position, you would not be a "Key Employee" within the meaning of the leave statutes and, therefore, you would have the usual statutory reinstatement rights that apply to employees that are not Key Employees described in more detail below and in the attachments. A. Alternative 1: Separation Package As we discussed with you, for various reasons related to management concerns, your compensation and benefits, and the possibility that upon completion of the 12 week FMLA/CFRA period, you might not be able meet the essential functions of your position by meeting the same work schedule demands and other demands and responsibilities as you did prior to going on leave; to protect your continued health coverage you may prefer to resign your employment. As also indicated, if you were interested in pursuing this alternative, upon execution of a Separation and Release Agreement acceptable to the Company, the Company would be willing to provide you with the generous and much more extensive compensation and benefits outlined in our discussion. As you requested during our discussion, those general terms were set out in my e-mail of July 26 to you. In summary the conditional offer included 12 months base pay, 12 months additional stock option vesting (i.e., accelerated vesting), 12 months post-separation to exercise your vested .stock options, reimbursement for COBRA coverage for the leave maximum (29 months) and as a further goodwill gesture, continued payment of the rent on the condominium until your current medical treatment is completed. As we indicated, if you were interested in this option a Separation and Release Agreement would be provided to you and you would have time to consider the Agreement in accordance with applicable law. B. Alternative 2: FMLA & Potential Reinstatement Post-Leave As the Senior Vice President of Marketing and Product Management, you are a Key Employee under our policy and within the meaning of the FMLAICFRA as you are among the highest paid 10 percent of all the employees employed by the Company. Although FMLAICFRA generally require that employees be reinstated to the same or an equivalent job with the same pay, benefits and other terms and conditions of employment upon return from leave, because you are a Key Employee, restoration of employment may be denied following FMLAICFRA leave on the grounds that such restoration will cause substantial and grievous economic injury to the Company. Given all of the information set forth above, the Company must reserve all rights with respect to your status as a Key Employee and its rights to determine that continuing your leave of absence and restoring you to employment will cause an undue hardship and substantial and grievous economic injury. We currently anticipate that it may be necessary to provide such notice to you in the near future, but we will, of course, provide specific notice ofthat determination once it is made, and you will be given an opportunity to return to full-time employment if you are able to do so immediately. However, if you are unable to immediately return to work and resume the full responsibilities of your current position, the Company would be within its rights to deny reinstatement. Of course, the Company would be willing to engage in an interactive process with you regarding reasonable accommodations including reviewing whether there were any available vacant positions at that time. Nevertheless, it is important to note that being denied restoration could significantly and negatively impact your receipt of health benefits, stock options vesting and severance eligibility. Unfortunately, if your employment with the Company ends, your Company health benefits will also end, subject to your right to continue your health insurance under COBRA. Further, you should consider the impact of denied reinstatement on your stock options. As set forth in the attached 2006 Stock Plan: Stock Option Agreement, many of your stock options have not yet vested. In addition, your vesting schedule(s) may be adjusted due to your leave of absence as set forth in Section 6{ d) of the document. Further, if as anticipated, the Company needs to notify you of the intent to deny your reinstatement, your vesting may be impacted and could terminate. Finally, you should note that based on the definition in your October 5, 20 I 0 Offer Letter, and depending on your circumstances, you could be ineligible for severance if it is determined that you are Permanently Disabled within the meaning of the Agreement and are unable to return to your current position. For all of the above reasons, our assessment is that the above alternative is not one that is in your best interest as it creates substantial uncertainty and risk. C. Alternative 3: Reduced Role. Among the alternatives that we've examined is whether or not you could continue your employment in a different capacity and avoid the possibility ofthe Company being forced to notify you that it will deny reinstatement and, thus, potentially jeopardize your health benefits. In this scenario, you would notify us in the next two weeks that you are requesting a reduced role effective upon completion of your FMLAICFRA leave. The Company could then allow you to accept an alternative non-executive position in order to accommodate you. In order to maintain your health benefits, under the terms ofthe Aetna Health Plan, you would be required to regularly work at least 32 hours per week The specific salary and other terms of the new position would be set forth in a new, at-will, Employment Agreement commensurate with the position, which will include a release of claims but will supersede your current Offer Letter. III. Leave of Absence Information As explained above, regardless of which alternative you select, since you are not currently able to perform the essential functions of your duties on a full time basis, the Company has provisionally approved an unpaid FMLAICFRA leave of absence. We will continue your health benefits, and subject to our reservation of rights set forth above, we will continue to pay the employer portion of those benefits for the entire 12 week leave period. In order to maximize your health benefits, the 12 week period will be granted as FMLAICFRA leave conditioned upon your furnishing medical certification that includes an expected date of return. This leave will count concurrently against both your annual FMLA and any state law leave entitlement. A copy of the FMLA/CFRA leave of absence information is attached. Though we do not doubt the serious nature of your condition, in accordance with Company policy, you are required to furnish a medical certification of your serious health condition within 15 days of your receipt of this letter. Please have your health care provider complete the attached medical certification form and ensure that I receive the completed form within 15 days. You have the alternative of using any remaining paid time off benefits during your leave. Please let us know in writing if you wish to do so. If you believe that you will need to extend your leave of absence beyond the end of the FMLA/CFRA period, you will also need to advise us as soon as possible so that we can determine the extent of continued coverage under the Americans with Disabilities Act ("ADA") and/or applicable state law and engage in an interactive process with you to determine whether additional leave and/or other accommodations would allow you to return to work and perform the essential functions of your position. Please be advised that if you have already been informed that you will not be able to return to work full time then you would not be entitled to any additional leave and you would be obligated to advise us ofthat fact as soon as possible. You will be required to furnish us with periodic reports of your expected return date every month or upon expiration of the time period originally estimated by your health care provider, whichever is longer. If the circumstances of your leave change and you are able to return to work earlier, you will be required to notify us at least two work days prior to the date you intend to report to work. Please note that once you are released to return to work, you will be required to present a Release to Return to work or Fitness for Duty certificate prior to being restored to employment. If such certification is not received, your return to work may be delayed until the certification is provided. The certification should also list any restrictions, if applicable. IV. Additional Benefits Information We have directed Sun Life Financial to forward information regarding applying for benefits under the Company's Short Term Disability ("STD") programs to you. Notwithstanding that you originally declined to apply for benefits under this policy, you may want to reconsider this alternative. Please note that the process for applying for STD is separate and distinct from your obligations with respect to your employment and leave of absence. Depending on the terms of the applicable Plan(s), you may be eligible for benefits notwithstanding whether you are able to continue your employment with the Company. All benefits determinations, however, are made pursuant to the terms of the applicable Plan by the Sun Life Financial Plan Administrator. Accordingly, on a going forward basis, please forward all documents related to STD directly to the Sun Life Financial Plan Administrator who will be administering your c1aim(s). The contact person and address will be included in the documentation. You also may be entitled to file for State Disability Insurance. Accordingly, enclosed is a copy of the brochure "Disability Insurance Provisions" describing the process to apply for state disability insurance benefits through the California EDD. Please note that, as set forth above, your application for disability insurance benefits with the state and/or the Plan are separate and distinct from your leave and employment rights. Accordingly, we will need to receive the FMLA Certification referenced above, with an expected return to work date, notwithstanding what you have submitted with respect to the state and/or the Plan with respect to disability benefits. V. Conclusion We want to do everything we can for you during this difficult time, and so we crafted the voluntary separation offer in an effort to work with you to achieve the maximum benefits that may be available to you, while at the same time avoiding substantial and grievous economic injury to the Company. If you are interested in the voluntary separation offer, and would like to accept it as outlined, or the offer ofa reduced role, please let us know by two weeks from today, and we will prepare either the required Separation and Release Agreement or a new offer letter, as applicable, for your consideration. However, as noted above, if you decline both of those alternatives, you will begin an unpaid FMLAICFRA leave until the 12 leave period has been exhausted. You will be entitled to use all accrued unused PTO during the otherwise unpaid FMLAICFRA leave. In addition, the Company would promptly notify you of any intent to deny reinstatement upon making the appropriate findings in accordance with the provisions relating to Key Employees. We are sorry this letter is so formal and complex. However, we are trying to give you all of the information you need to move forward and to comply with all of the applicable laws. If you have any questions, please contact me at 212-7406 as I will personally work with you to address any questions you have regarding your leave of absence. Enclosures: FMLA/CFRAPolicy FMLA/DOL-CFRA Forms: Sincerely, Debbie Shotwell Vice President Global Human Resources WH-38l (Modified for CA) (Notice of Eligibility and Rights and Responsibilities/FMLA) CFRA Notice Pamphlet (DFEH-188) Certification Form WH-380E (Modified for CA) (Certification of Health Care Provider for Employee's Serious Health Condition EDD Disability Insurance Provisions/SOl Pamphlet (DE 2515) 2006 Stock Plan: Stock Option Agreement Debbie ShotweH ! Vice President Global Human Resources I Good Technology! [email protected] I 0: 408 .. 212-7406 I M 925963 .. 5192 ! www.good.com 1 430 N. [v1ary Ave, Suite- 200, Sunnyvale. C , ~ 94085 EXHIBIT C Susan E. Vinci-Lucero From: Sent: To: Subject: David Satterwhite Saturday, March 03, 2012 12:24 PM Susan Vinci-Lucero RE: Quick RSA Recap Your team is doing an amazing job Susan. Thanks. David David Satterwhite I VP and General Manager, Americas I Good Technology [email protected] I 408-212-73121 www.good.com tV).!. -Watch our YouTube video: http://www.youtube.com!watch?v=Yx2b3502RTw Note: The information contained in this message may be privileged and confidential and protected from disclosure. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended reCipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the message and deleting it from your computer. Thank you. REDACTED EXHIBITD RE: Work Discussion Summary 10f6 Subject: RE: Work Discussion Summary From: "Jim Moise" Date: 5/25/2012 11:56 AM To: "Susan Vinci-Lucero" CC: "Debbie Shotwell" Yep! Sent with Good (www.good.com) Jim Moise I Chief Customer Officer, EVP Sales, Marketing and Services I Good Technology I [email protected] I 0: 408.212.7347 M: 949.683.9845 I www.good.comI430 N. Mary Ave, Suite 200, Sunnyvale, CA 94085 -----Original Message-----From: Susan Vinci-Lucero Sent: Friday, May 25, 2012 11:10 AM Pacific Standard Time To: Jim Moise Cc: Debbie Shotwell Subject: Re: Work Discussion Summary Debbie - here is final, agreed to by me and Jim! Susan ******************* I am summarizing the key points of the conversation we had on Thursday, May 17 regarding my current and future employment status at Good: 1. I will be fully paid and receive full benefits, and my options and PTO will continue to vest/accrue per both you and Debbie during the entire period I am undergoing cancer treatment. Every aspect of my current compensation will remain in force throughout the course of my cancer treatment, just as if I was continuing to work, including salary, all benefits, bonus eligibility, stock option vesting, and all commute / living expenses associated with working in California, while permanently residing in New Mexico. 2. I will return to my current position at the end of my cancer treatments, which at this point is expected to be around late October 2012. 3. Other than to cover for my absence, any other organizational changes that affect my team during my absence will be made in agreement between myself and Jim. 4. We will stay in touch every other week to ensure that I remain aware of and connected to what's going on in the business and organization. I made it clear to you, King and Debbie prior to and during our meeting that I intended to and am able to continue to work during the course of my cancer treatments. You stated that this is not what you believe is 10/29/20122:33 PM RE: Work Discussion Summary 2of6 best for the business. While I do not agree with your assessment and know that I would continue to add value during my treatment, as do many people undergoing cancer treatment, given the summary agreement above and the company's commitment to my return, I will comply with the terms agreed to in our meeting, despite my reservations; through the end of my cancer treatments (estimated to be late October). Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid:[email protected] From: Jim Moise Date: Thu, 24 May 2012 16:07:52 -0700 To: Microsoft Office User Cc: Debbie Shotwell Subject: RE: Work Discussion Summary Hi Susan Item 3 looks great. AI! set. I'!i ask Maggie to coordinate calendars for our bi-weekly meetings. Thx Jim From: Susan Vinci-Lucero Sent: Thursday, May 24,20121:28 PM To: Jim Moise Cc: Debbie Shotwell Subject: Re: Work Discussion Summary Thanks Jim. Below is what I propose to item # 3, embedded in full text. I think my replacement can certainly make recommendations and discuss with you, but any decisions should be agreed between you and I (not you and the replacement only). Thursday's or Friday's are fine, except we will have to schedule on my off-chemo weeks. My chemo's are scheduled on thursdays and Friday's might be dicier. (this week was an exception with chemo on Wed.) So, we'll do the off weeks. Look forward to talking hopefully later today. Susan *********************** Jim, I am summarizing the key points of the conversation we had on Thursday, May 17 regarding my current and future employment status at Good: 1. I will be fully paid and receive full benefits, and my options and PTO will continue to vest/accrue per 10/29/20122:33 PM RE: Work Discussion Summary 30f6 both you and Debbie during the entire period I am undergoing cancer treatment. Every aspect of my current compensation will remain in force throughout the course of my cancer treatment, just as if I was continuing to work, including salary, all benefits, bonus. eligibility, stock option vesting, and all commute / living expenses associated with working in California, while permanently residing in New Mexico. 2. I will return to my current position at the end of my cancer treatments, which at this point is expected to be around late October 2012. 3. Other than to cover for my absence, any other organizational changes that affect my team during my absence will be made in agreement between myself and Jim. 4. We will stay in touch every other week to ensure that I remain aware of and connected to what's going on in the business and organization. I made it clear to you, King and Debbie prior to and during our meeting that I intended to and am able to continue to work during the course of my cancer treatments. You stated that this is not what you believe is best for the business. While I do not agree with your assessment and know that I would continue to add value during my treatment, as do many people undergoing cancer treatment, given the summary agreement above and the company's to my return, I will comply with the terms agreed to in our meeting, despite my reservations, through the end of my cancer treatments (estimated to be late October). Please confirm that you have received this email as soon as possible. Regards, Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid:[email protected] From: Jim Moise Date: Thu, 24 May 201213:16:59 -0700 To: Microsoft Office User Cc: Debbie Shotwell Subject: RE: Work Discussion Summary Hi Susan, Oooops. Copied your original instead of my updates. Here is the full set again, with my comments in bold in line 3. 1. I will be fully paid and receive full benefits, and my options and PTO will continue to vest/accrue per both you and Debbie during the entire period I am undergoing cancer treatment. Every aspect of my current compensation will remain in force throughout the course of my cancer treatment, just as if I was continuing to work, including salary, all benefits, bonus eligibility, stock option vesting, and all commute / living expenses associated with working in California, while permanently residing in New Mexico. 2. I will return to my current position at the end of my cancer treatments, which at this point is expected to be around late October 2012. 10/29/20122:33 PM RE: Work Discussion Summary 40f6 3. Organizational changes that affect my team during my absence will be made in agreement between myself and Jim and/or my replacement throughout my absence. 4. We will stay in touch every other week to ensure that I remain aware of and connected to what's going on in the business and organization. I would like to do our bi-weekly updates Thursday or Friday mornings if you are ok with that. I have my 1:1 with Kirsten on Wed, and Exec staff is on Wed too. I can give you more current info with those meetings under my belt. Fridays would be my preference. Let me know. On the phone, or "on-site" is fine. Everyone would be glad to see you on-site, and that would be great. Maggie is putting together a time this afternoon for you and I to talk after your doctor's appt, we can cover the communication and any other open topics. Talk to you in a few, Thx Jim From: Susan Vinci-Lucero Sent: Thursday, May 24,2012 10:13 AM To: Jim Moise Cc: Debbie Shotwell Subject: Re: Work Discussion Summary HiJim, Thank you for responding. In item 3, I do not see or notice any changes (in your reply) to reflect your preference. Please let me know what wording you'd like to insert or change. For bi-weekly meetings, we were having our weekly 1:1s on Monday afternoons and that time works well for me still. I can ask Maggie to change that to bi-weekly if that works for you. We can do phone calls and for larger reviews/subjects, just meet somewhere close to the office as needed. Let me know if that works. Yes, I agree that something needs to be communicated and have been thinking that over. Let me know your thoughts; my day is pretty open except a quick doctor's appt at 2:30. With respect to the time off, I will spend the next few weekswinding down on loose ends such as req/PO approvals, budget handling, etc. Then I will check out from daily work. Meantime, I will have to communicate that the coverage plan I put in place when I left for surgery will remain in place until further notice, unless you have some other ideas on that front. We can discuss. Thanks, Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid:i mage001.j [email protected] 10/29/20122:33 PM RE: Work Discussion Summary 50f6 From: Jim Moise Date: Thu, 24 May 2012 07:24:47 -0700 To: Microsoft Office User Cc: Debbie Shotwell Subject: RE: Work Discussion Summary Hi Susan Thank you for putting your thoughts together. I think they fairly summarize our discussion. With respect to organizational changes, ! have clarified my preference in item 3 below. Please let me know your thoughts. With respect to item 4 below, when would you like to begin our bi-weekly meetings? Lastly, I think it would be very important to formally communicate this revised arrangement to your team and Executive Staff. I have some thoughts on this and would like to discuss them with you at your convenience. With each of these items addressed, I hope that during your time off you are able to focus on restoring your health, and know that ail of us wish you a speedy and full recovery. Thx Jim From: Susan Vinci-Lucero Sent: Tuesday, May 22,201211:09 PM To: Jim Moise Cc: Debbie Shotwell Subject: Work Discussion Summary Jim, I am summarizing the key points of the conversation we had on Thursday, May 17 regarding my current and future employment status at Good: 1. I will be fully paid and receive full benefits, and my options and PTO will continue to vest/accrue per both you and Debbie during the entire period I am undergoing cancer treatment. Every aspect of my current compensation will remain in force throughout the course of my cancer treatment, just as if I was continuing to work, including salary, all benefits, bonus eligibility, stock option vesting, and all commute / living expenses associated with working in California, while permanently residing in New Mexico. 2. I will return to my current position at the end of my cancer treatments, which at this point is expected to be around late October 2012. 3. You will not make organizational changes that affect my team during my absence, other than to cover for my absence. 4. We will stay in touch every other week to ensure that I remain aware of and connected to what's going on in the business and organization. 10/29/20122:33 PM RE: Work Discussion Summary 60f6 I made it clear to you, King and Debbie prior to and during our meeting that I intended to and am able to continue to work during the course of my cancer treatments. You stated that this is not what you believe isbest for the business. While I do not agree with your assessment and know that I would continue to add value during my treatment, as do many people undergoing cancer treatment, given the summary agreement above and the company's commitment to my return, I will comply with the terms agreed to in our meeting, despite my reservations, through the end of my cancer treatments (estimated to be late October). Please confirm that you have received this email as soon as possible. Regards, Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid:[email protected] 10/29/20122:33 PM EXHIBITE Re: Work Discussion Summary 10f4 Subject: Re: Work Discussion Summary From: "Susan Vinci-Lucero" Date: 5/23/20128:14 AM To: "Debbie Shotwell" Thank you for your support Debbie. Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technolo[JY [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid :[email protected] From: Debbie Shotwell Date: Wed, 23 May 2012 08:10:40 -0700 To: Microsoft Office User Subject: RE: Work Discussion Summary Got it. Jim received your note and requested a meeting with me to reply. I appreciate your summary and your feelings. Please take care. I heard you went to Yosemite this weekend. I hope it was beautiful and peaceful. Thinking of you, Debbie From: Susan Vinci-Lucero Sent: Tuesday, May 22,201211:25 PM To: Debbie Shotwell Subject: FW: Work Discussion Summary Debbie, In addition to the summary of my conversation with Jim on Thursday, May 17th (outlined in the forwarded email below), Jim also specifically told me the following: That my continued presence during my treatment, my "comings and goings" were "bad for business" and "disruptive for the team". He told me this multiple times. 10/29/20122:34 PM Re: Work Discussion Summary 20f4 That my team, as well as my peers, did not know who to go to or who was in charge and that we can't have "three people running the Marketing departmentIJ, That I would be fully paid and compensated (as summarized below) during my cancer treatment, but that I should not work or return to work until after my cancer treatments were completed. That my cancer treatment would be a "long haul" for me, that the treatments were rough and that he had a friend going through cancer treatment and that it was very tough on him. That he would not make any changes to the marketing department during my absence other than to manage coverage during my absence. That any organizational or headcount related topics would be reviewed and discussed with me. That he would find a way to stay in touch with me and keep me informed, by having l:l's with me every other week or so. That I would return to my current role following my cancer treatments. That I need to find and hire one person to run the department during my absence. I want to be clear that at no time during this conversation was I asked what I wanted or was I offered any other option or discussion, other than as stated above. For the record: I was welcomed back to work with full support on Tuesday, May 15th. I have consistently communicated with Jim and King my status and plans to return to work. Until this meeting on the 17th, I had absolutely no indication that my return to work during iny medical treatment was anything less than positive and desirable. The team and coverage plan I had quickly put in place while out for surgery and initial treatment was vetted by King and approved by Jim. This plan was not intended to remain in place throughout the course of my cancer treatment. It was meant to cover my department short term, so I could quickly leave for surgery, assess my medical status and determine when I could safely return to work. Once I returned to work, the intent was to phase out Kirsten and Christine as co-managers of the department. Because I intended to return to work, I chose to have my chemo and radiation treatment in California (versus New Mexico), primarily so I could continue working during treatment. I was advised by my oncologist that I would be able to return to work. I specifically scheduled my chemo treatments so that the bulk of any time away from work would occur over the course of every other weekend. This would have no more impact, and possibly less (in terms of time out of the office) than my regular work commute to and from Santa Fe each week. Debbie, as you are aware, my discussion with Jim came as a surprise to me as I have done everything possible under the circumstances to ensure my department was covered in the short term until I returned to work after the start of my cancer treatments following surgery. The decision to tell me to not return to work was made without consultation or discussion with me and I am still struggling to understand what prompted this sudden change between Tuesday when I was welcomed back with full support and Thursday when I was told to discontinue working until my treatments were completed. And I categorically disagree with, and the facts certainly DO NOT support any claim that my presence at work is "bad for business" or "disruptive to the team". As I'm sure you're aware, being female, over 40 and a cancer patient, I am in a protected status on three fronts; therefore, I feel it is in my best interest to document this discussion with Jim and the resulting terms / status of my employment. Please let me know if you have any questions. 10/29/20122:34 PM Re: Work Discussion Summary 30f4 Thank you. Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com cid:[email protected] From: Susan Vinci-Lucero Sent: Tuesday, May 22,201211:08 PM To: Jim Moise Cc: Debbie Shotwell Subject: Work Discussion Summary Jim, I am summarizing the key points of the conversation we had on Thursday, May 17 regarding my current and future employment status at Good: 1. I will be fully paid and receive full benefits, and my options and PTO will continue to vest/accrue per both you and Debbie during the entire period I am undergoing cancer treatment. Every aspect of my current compensation will remain in force throughout the course of my cancer treatment, just as if I was continuing to work, including salary, all benefits, bonus eligibility, stock option vesting, and all commute / living expenses associated with working in California, while permanently residing in New Mexico. 2. I will return to my current position at the end of my cancer treatments, which at this point is expected to be around late October 2012. 3. You will not make organizational changes that affect my team during my absence, other than to cover for my absence. 4. We will stay in touch every other week to ensure that I remain aware of and connected to what's going on in the business and organization. I made it clear to you, King and Debbie prior to and during our meeting that I intended to and am able to continue to work during the course of my cancer treatments. You stated that this is not what you believe is best for the business. While I do not agree with your assessment and know that I would continue to add value during my treatment, as do many people undergoing cancer treatment, given the summary agreement above and the company's commitment to my return, I will comply with the terms agreed to in our meeting, despite my reservations, through the end of my cancer treatments (estimated to be late October). Please confirm that you have received this email as soon as possible. Regards, Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 I M: 650.339.6225 I www.good.com 10/29/20122:34 PM Re: Work Discussion Summary cid:[email protected] 40f4 10/29/20122:34 PM EXHIBITF RE: Susan Vinci Lucero -- Attorney-Client Privileged & Confidential Subject: RE: Susan Vinci Lucero -- Attorney-Client Privileged & Confidential From: IIDebbie Shotwelill Date: 7/27/2012 11:21 AM To: IISusan Vinci-Luceroll ! understand. let me know if you need anything. Thank you .... Debbie Shotwell I Vice President Global Human Resources I Good Technology I [email protected] I 0: 408-212-7406 I M: 925-963-51921 www.good.comI430N.MaryAve.Suite200.Sunnyvale.CA 94085 DesCl De SCI DesCl From: Susan Vinci-Lucero Sent: Friday, July 27,2012 11:18 AM To: Debbie Shotwell Subject: Re: Susan Vinci Lucero -- Attorney-Client Privileged & Confidential Got it. I will keep the situation and everything discussed confidential. I need time to think about this. I had a horrible night and the stress, especially at this point, is nearly overwhelming. I am clearly not ready to respond yet. Thank you Debbie. Susan Susan E. Vinci-Lucero I SVP Marketing I Good Technology [email protected] 10: 650.486.6975 1 M: 650.339.62251 www.good.com . cid:[email protected] From: Debbie Shotwell Date: Thu, 26 Jul 2012 21:57:22 -0700 To: Microsoft Office User Subject: Susan Vinci lucero -- Attorney-Client Privileged & Confidential Dear Susan, Thank you for taking the time to meet with us today. We want to be highly respectful of your circumstances and address a very challenging situation in a way that both honors our relationship with you and serves the needs of the company in the short term and long term. As discussed, as an executive severance package upon termination, Good is currently prepared to offer you the follo

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